CYIL vol. 12 (2021)
michaela sýkorová CYIL 12 (2021) considering other applicable rules, whether those governing the interpretation of treaties or law of responsibility, such a judicial dispute settlement would be meaningless and would not represent any added value for the Convention’s life. Taking all those aspects we therefore suggest that the customary rules regarding States responsibility, reflected overwhelmingly in ARSIWA, remain applicable and relevant also for diplomatic law. In that sense, rules on diplomatic immunities are not entirely autonomous. The COVID-19 pandemic has been an extraordinary situation affecting practically all States. The WHO has declared it as a public health emergency of international concern (PHEIC) 44 which is a term used for “serious, sudden, unusual or unexpected event” with implications for public health that “may require immediate international action”. Such declaration may trigger a legal duty of all States to respond promptly to such an emergency. The extraordinary nature of the situation does not, of course, justify overly any breaches of international obligations, be it within human rights law or diplomatic law. On the other hand, it creates a set of unexpected circumstances that were not intended to be part of ordinary course of events under which a particular legal norm is typically applied. States may be forced or driven by various factors to behave in a manner they would normally not. This is also a rationale behind the circumstances precluding wrongfulness of an act that would otherwise be considered unlawful. The pandemic itself is exceptional in nature, whether labelled as a force majeure beyond the control of States or a necessity as the only way for States to safeguard an essential interest against a grave and imminent peril. 45 It is true that the Convention limits the permissible responses to emergencies, when it comes to inviolability of premises, protection of archives and official documentation. But this does not preclude a receiving State, facing an emergency, from taking proper necessary steps – whatever unusual or unprecedented – in order to save lives in a situation that is beyond its control, provided that those absolute inviolabilities and protection are respected. However, invoking one of the circumstances precluding wrongfulness, was not meant to be arbitrary, and the precise connection between an act and the excuse must be given. 46 Lastly, one more point is offered, even if it may be a hypothetical idea, rather than a solid argument. International law has its dynamics and it evolves through decades. A rule establishing an exception from the inviolability might not exist in the sixties and may not be evolving nor even nowadays. Let us, however, recall an inconclusive attitude of the ICJ in 1996 47 , when the Court itself was not able to opine on the legality of the use of nuclear weapons against a hypothetical extremity of a self-defence situation where the whole existence of State would be threatened. In that sense, a possible derogation from diplomatic immunities may not per se be excluded, and this presumption is even stronger when an emergent situation worsens extremely. 48 44 WHO, International Health Regulations (2005), cited here https://www.who.int/news-room/q-a-detail/ emergencies-international-health-regulations-and-emergency-committees. 45 See Article 23 and 25 of ARSIWA, 2001. 46 See ibid , commentary to Chapter V. 47 ICJ, Legality of the Threat or Use of Nuclear Weapons , Opinion of 8 July 1996, para. 48 In May 2021 when India faced a second strong outbreak, many foreign embassies in Delhi reported hundreds of infected persons among their staff. See the article by Bhattacherjee, Kallol: „ Several foreign embassies in Delhi face COVID-19 onslaught .“ Published on May 2, 2021 here https://www.thehindu.com/news/national/ several-foreign-embassies-in-delhi-face-covid-19-onslaught/article34462905.ece [29-5-2021].
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